01A14559
11-18-2002
Lillie P. Ivy, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Lillie P. Ivy v. Department of the Air Force
01A14559
November 18, 2002
.
Lillie P. Ivy,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A14559
Agency No. AEOJ99006
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as an Outbound Household Goods Counselor at the agency's Traffic
Management Office, Columbus Air Force Base, Columbus, Mississippi
facility. Complainant sought EEO counseling and subsequently filed
a formal complaint on September 15, 1999, alleging that she was
discriminated against on the basis of reprisal for prior EEO activity
when:
(1) she received a lower performance appraisal for the period 1998-1999;
(2) she was subjected to harassment.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing but rescinded her request and asked that
the agency issue a final decision.
In its final decision, the agency concluded that complainant established
a prima facie of reprisal because she engaged in protected activity by
filing an EEO complaint in 1996 and in 1997, her supervisor was aware of
her protected activity and she was subjected to adverse actions after her
supervisors became aware of her protected activity. The agency concluded,
however, that there were legitimate non-discriminatory reasons for each
of the actions at issue, which complainant failed to demonstrate were
a pretext for discrimination.
On appeal, neither party made any additional statements.
ANALYSIS AND FINDINGS
Although the Commission finds that complainant properly established a
prima facie case of discrimination based on reprisal, we also find
that complainant failed to present evidence that more likely than
not, the agency's articulated reasons for its actions were a pretext
for discrimination. Complainant can establish a prima facie case of
reprisal by presenting facts that, if unexplained, reasonably give rise
to an inference of discrimination. Shapiro v. Social Security Admin., EEOC
Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corporation
v. Green, 411 U.S. 792, 802 (1973). Specifically, in a reprisal claim,
according to the burdens set forth in McDonnell Douglas, complainant may
establish a prima facie case of reprisal by showing that: (1) she engaged
in protected activity; (2) the agency was aware of her protected activity;
(3) subsequently, she was subjected to adverse treatment by the agency;
and (4) a nexus existed between the protected activity and the adverse
action. See Hochstadt v. Worcester Foundation for Experim. Biology Inc.,
425 F Supp. 318 (D. Mass 1979) aff'd 545 F2d 222, 324 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997). The Commission's policy on retaliation prohibits
any adverse treatment that is based on a retaliatory motive and is
reasonably likely to deter the complainant or others from engaging in
protected activity. EEOC Compliance Manual Section 8, �Retaliation�
No. 915.003 at p 8-13 (May 20, 1998). See also Whitmire, v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
In this case, complainant alleges that her first line supervisor (S1)
recommended her for an appraisal of �excellent� for the 1998-1999
period but that her second line supervisor (S2) ordered that her
rating be lowered to �fully successful� in retaliation for her prior
protected activity. Based on our review of the evidence, complainant
failed to establish that S1 or S2 were motivated by reprisal when her
initial rating was changed from �excellent� to �fully successful.� The
evidence set forth in the record established that S1 initially rated
complainant's performance as �excellent,� but on S2's review of the
appraisal, S2 determined that S1 had not rated complainant high enough
on individual elements to warrant an overall rating of �excellent.� S1
did not raise complainant's ratings on individual elements in the final
appraisal but instead lowered the overall rating to �fully successful� to
comply with the agency's guidelines for issuing performance appraisals.
Complainant did not offer any evidence that S1 or S2 had a retaliatory
motive or that their reasons were a pretext for retaliation. Rather she
disputed S1's ratings of her based on her own judgment of her performance
during the relevant time period. Because complainant failed to offer
evidence of a retaliatory motive, we conclude she was not discriminated
against in S1's rating of her performance.
Complainant claimed she was subjected to harassment when she was required
to submit leave slips when other employees were not, when she was required
to request leave in one-hour increments, when S1 scheduled her lunch
hour while others were allowed to set their own lunch schedule, and when
S1 talked to her loudly in front of other employees and customers among
other incidents.
In response, S1 stated that she scheduled complainant's and two other
employees' lunch hour because of their inability to come to an agreement
among themselves. In addition, the evidence indicated that S1 did not
consistently enforce the policy requiring employees to request leave in
writing and that S2 instructed S1 to ensure that all employees followed
appropriate leave procedures. S2 also testified that he researched
whether complainant could take leave in smaller time increments and
allowed her to do so once he found the authority to permit it. Thus,
the agency provided explanations which tended to refute complainant's
claim that she was treated differently from other employees in retaliation
for her protected EEO activity.
In addition, based on the evidence before us, complainant has failed to
show that the actions at issue were sufficiently severe to constitute
legally actionable harassment. A single incident or group of isolated
incidents will not be regarded as discriminatory harassment unless the
conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th
Cir. 1982). Whether the incidents alleged are sufficiently severe to
trigger a violation of Title VII must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating,
or a mere offensive utterance, and whether it unreasonably interferes
with an employee's work performance. Harris v. Forklift Systems, 510
U.S. 17 (1993). We cannot conclude that these incidents, when considered
together, were sufficiently severe or pervasive to unreasonably interfere
with complainant's working conditions. Therefore, the Commission finds
that complainant was not subjected to harassment based on her prior
protected EEO activity.
In conclusion, after a careful review of the entire record, we affirm
the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which
to file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 18, 2002
__________________
Date